(as of May 1, 2019)
A. General
1. Scope
1.1 These General Terms and Conditions shall apply for the duration of the business relationship between KRUG GmbH - IKRU (hereafter referred to as “KRUG”) and the ordering party to all goods and services to be provided by KRUG, in particular services under a service agreement or under a contract for work. They shall also apply to all future business transactions with the ordering party.
1.2 These General Terms and Conditions shall form the basis of all business transactions with the ordering party. They shall apply to entrepreneurs, legal entities under public law and public-law special funds.
1.3 These General Terms and Conditions shall apply exclusively; opposing or deviating terms and conditions issued by the ordering party shall not be accepted unless KRUG explicitly consents to their application in writing.
1.4 KRUG is entitled to change the provisions with effect for the future at any time by notifying the ordering party accordingly.
2. Offers / Documents
2.1 Offers by KRUG shall be nonbinding and without obligation until final order confirmation.
2.2 KRUG reserves the unrestricted exploitation rights, ownership rights and copyrights in cost estimates, drawings and other documents. Such documents may only be made available to third parties with the prior consent in writing of KRUG. The respective data and information contained in the documents shall not constitute any guarantee commitments; guarantee commitments shall always require the explicit confirmation in writing by KRUG.
3. Prices / Terms of Payment
3.1 In addition, KRUG's price list in its current version shall apply. Agreed prices may be binding fixed prices or recommended prices or may be based on the time spent or measurement of finished work. In principle, all prices shall be net prices and subject to the relevant value added tax at the statutory rate.
3.2 If the scope of the contractual service under the respective order is altered, particularly extended, by mutual agreement during the processing of the order, KRUG may demand a corresponding adjustment of the agreed prices and remunerations, in particular an increase therein. KRUG shall be entitled to temporarily stop the execution of the services ordered until agreement is reached on a corresponding adjustment of the prices and remunerations, provided that KRUG has pointed this out to the ordering party in writing beforehand. Delays occurring as a result thereof are not borne by KRUG. Unilateral change of the services ordered by the ordering party shall not be acceptable.
3.3 Unless otherwise agreed, KRUG shall be entitled at its own equitable discretion to demand appropriate advance payment and issue partial invoices for contractual services already provided and/or partial invoices depending on the contract progress.
3.4 All invoices issued by KRUG are due immediately upon receipt and payable within 14 days less a 2 % discount or within 30 days net.
3.5 The ordering party may set off only those claims that are undisputed and legally established. Excluded from this are claims arising from withdrawal from the contract.
4. Delivery
4.1 Delivery by KRUG shall be made ex works according to Incoterms 2010. Delivery volumes and dates can be gathered from the order confirmation. Delivery periods shall not start before all performance details have been completely clarified.
4.2 KRUG may choose the form of shipment. This shall not apply if the ordering party has issued explicit instructions. Alternative agreements in text or written form shall be possible. Partial deliveries shall be permitted and shall be charged separately.
4.3 KRUG's obligation to effect delivery shall be subject to timely and correct supply of required materials by KRUG's own suppliers. This shall not apply if KRUG is responsible for non-delivery. When concluding a matching cover transaction, it shall be irrefutably presumed that we are not responsible for the non-delivery. If it is foreseeable that the delivery cannot be made on time, KRUG shall inform the ordering party in writing or text form on this matter and the reasons as well as the expected delivery time if it is possible for KRUG to do so. KRUG shall only be in default with delivery if KRUG has been granted a reasonable period of time for delivery without success, and KRUG is not responsible for the non-delivery, and the ordering party has fully performed its obligations.
4.4 The delivery period shall begin with the notification of readiness for dispatch or collection by KRUG and shall be subject to the condition that the service in turn has been provided. Insofar as acceptance is to take place, the notification of readiness for acceptance or the acceptance date shall be decisive.
5. Dates / Breach of Obligations to Cooperate
5.1 If no deadlines have been agreed, KRUG shall determine these at its own equitable discretion and in consultation with the ordering party.
5.2 If the ordering party fails to comply with its obligations to cooperate, in particular to submit any necessary documents, information and data, in due time, delays resulting from this shall be borne by the ordering party.
6. Default
6.1 In the event of default in delivery or service performance, KRUG shall be liable in cases of willful intent or gross negligence on the part of KRUG or its representative or vicarious agent as well as culpably caused loss of life, bodily injury or damage to health in accordance with the legal provisions. KRUG's right to withdraw from the contract shall remain unaffected. The aforementioned provisions do not involve a change in the burden of proof to the detriment of KRUG.
6.2 If the non-compliance with deadlines is due to force majeure, e.g. mobilization, war, riot, or similar events that is not attributable to KRUG, e.g. strike or lockout, the deadlines shall be extended by the times during which the aforementioned event continues to have its effects. KRUG shall immediately inform the other party of the occurrence and cessation of the force majeure and shall use its best endeavors to remedy the force majeure and to limit its consequences as far as KRUG is capable to do so. This information shall be communicated in text or written form, in urgent cases by phone. KRUG shall negotiate the further proceedings in cooperation with the other party.
6.3 If it becomes impossible or unreasonable to fulfil or execute performance, KRUG shall be released from its duty of performance.
6.4 KRUG shall be entitled to demand default interest at the statutory rate from and including the due date. The assertion of further damages claims shall remain unaffected by this.
7. Liability / Damages
7.1 KRUG shall be liable in cases of willful intent or gross negligence on the part of KRUG or its representative or vicarious agent as well as culpably caused loss of life, bodily injury or damage to health in accordance with the legal provisions. In cases of gross negligence, however, KRUG's liability shall be limited to the foreseeable damage typical of the contract, unless another of the exceptions listed in clause 7.1 sentence 1 or clause 7.2 exists at the same time.
7.2 Apart from that, KRUG shall only be liable in accordance with the German Product Liability Act (Produkthaftungsgesetz), for culpable breach of essential contractual obligations, or if KRUG has fraudulently concealed the defect or guaranteed a certain quality of the delivery item.
7.3 However, any claims for damages for the breach of essential contractual obligations shall be limited to the foreseeable damage typical of the contract, unless another of the exceptions listed in clause 7.1 sentence 1 or clause 7.2 exists at the same time.
7.4 The aforementioned provisions shall apply to all claims for damages (in particular for damages in addition to performance and damages in lieu of performance), regardless of the legal ground, in particular due to defects, breach of duties arising from the contractual obligation, or tort. They shall also apply to claims for compensation for futile expenses.
8. Warranty Claims
8.1 Prerequisite for any warranty claims against KRUG is that the ordering party has met its obligations set out in section 377 of the German Commercial Code4 (HGB), known as notice of defect. A notice of defect shall be deemed to have been made in good time if it is made within a period of five working days from the date of receipt of the delivery by the ordering party, and in the case of hidden defects from the date of discovery. If the goods have been accepted by the ordering party or if an on-site inspection has taken place, the notice of defect shall be excluded insofar as the defect could already have been detected at that time. The ordering party shall immediately return to KRUG all rejected goods for the purpose of inspection by KRUG.
8.2 If the notice of defect is not justified according to KRUG's inspection and the ordering party was aware that no defect existed when the notice of defect was submitted or was in error about that as a result from negligence, the ordering party shall compensate KRUG for any losses thus incurred. In this regard, KRUG shall charge a lump sum of € 100 and KRUG shall reserve the right to claim further damages. The ordering party shall be entitled to prove to KRUG that the defect reported nevertheless exists and/or KRUG had lower inspection costs than the lump sum charged. If the notice of defect is justified, KRUG shall rectify the defect or deliver a replacement at its discretion. If the rectification of defects fails after a reasonable deadline was granted by the ordering party, the ordering party may, at its discretion, demand a price reduction or the withdrawal from the contract. Withdrawal shall not be possible for minor defects.
9. Retention of Title
9.1 Ownership of the goods delivered by KRUG shall not pass to the ordering party until it has fulfilled all its liabilities, including, but not limited to, future liabilities, arising from the delivery of the goods by KRUG (retention of title or current account reservation).
9.2 The ordering party shall be obliged to insure the goods subject to retention of title at its own expense against breakage, water, fire and catastrophic loss as well as against theft, embezzlement, etc. Upon completion of the order, the ordering party assigns all its claims against the insurance company to KRUG in advance.
9.3 Any acquisition of ownership of the goods subject to retention of title by the ordering party in accordance with section 950 of the German Civil Code (BGB) by handling and/or processing the goods subject to retention of title into a new item shall be excluded. In this case, KRUG shall be entitled to joint ownership of the new item in the proportion of the value of the goods subject to retention of title to the other connected objects at the time of the connection. The delivery item to be handled and/or processed shall serve to secure KRUG's amount of joint ownership share. The ordering party shall be obliged to inform the owner of the other item about KRUG's retention of title. The new item may, in turn, only be resold subject to retention of title.
9.4 The handling and processing of delivered goods shall be carried out on behalf of KRUG, however, without any obligation for KRUG. Upon completion of the order, the ordering party shall transfer its ownership and joint ownership rights in mixed and/or processed goods at invoice value of the goods subject to retention of title to KRUG; these goods shall be stored for KRUG free of charge.
9.5 In addition, the ordering party hereby assigns and transfers all claims against third parties, arising from the resale of the goods subject to retention of title including mixed and/or processed goods, including all ancillary rights, in particular security interests; in the case of mixed and/or processed goods at invoice value of the goods subject to retention of title. In the usual and ordinary course of business, the ordering party may sell goods subject to retention of title and collect the claims assigned to KRUG. The ordering party shall immediately forward to KRUG all payments made on the assigned claims up to the amount of the secured claims. In case of justified interests, in particular default in payment, cessation of payments, initiation of insolvency proceedings, protest of a bill of exchange or justified indications of overindebtedness or impending insolvency of the ordering party, KRUG shall be entitled to revoke the ordering party's authority to collect. With prior warning and under observance of a reasonable deadline, KRUG may also disclose the assignment of security, liquidate the assigned claims and demand the disclosure of the assignment of security by the ordering party to its customers.
9.6 Upon request of KRUG, the ordering party shall be obliged to provide information about the goods subject to retention of title that are still in its possession, and the sales already made (customer, quantity, invoice value and date). Furthermore, KRUG may demand at any time that the goods be stored separately and labelled and that the ordering party enter claims and funds from the resale of goods subject to retention of title separately in the accounts and transfer each cash received immediately to KRUG.
9.7 During the existence of the retention of title, the ordering party shall be prohibited from pledging or chattel mortgage. In case of attachments, seizures or other disposals or interventions on the part of third parties, the ordering party shall notify KRUG immediately. Only resellers shall be permitted to resale the goods or the new goods in the ordinary course of business and only on the condition that the payment of the equivalent value of the goods or new goods is made to the ordering party. The ordering party shall also agree with the customer that the customer only acquires ownership with this payment.
9.8 The right of the ordering party to possess the goods subject to retention of title shall expire if it does not fulfill its obligations arising from this agreement or another agreement concluded with KRUG. In this case KRUG shall be entitled to take possession of the goods subject to retention of title and liquidate them at its own equitable discretion.
9.9 The assertion of the retention of title shall not be deemed a withdrawal from the contract; the proceeds of the sale shall be offset against the ordering party's liabilities after deduction of the costs; any remaining payment claims and claims for damages not covered by the liquidation shall remain unaffected.
10. Limitation Period
10.1 The limitation period for claims and rights due to defects in performance – irrespective of the legal basis – shall be one year. However, this does not apply in the cases of section 438 paragraph 1 no. 2 or section 634 paragraph 1 no. 2 of the German Civil Code (BGB). The aforementioned exceptions are subject to a limitation period of three years.
10.2 The limitation periods set out in clause 10.1 shall also apply to all claims for damages against KRUG that are related to the defect – irrespective of the legal basis of the claim.
10.3 However, the aforementioned limitation periods shall apply on the following terms:
a) In general, the limitation periods shall not apply to cases of willful intent or fraudulent concealment of a defect or if KRUG has guaranteed a certain quality of the delivery item.
b) The limitation periods shall also not apply to claims for damages in the event of grossly negligent breach of obligation; in the event of culpable breach of essential contractual obligations – not existing in the delivery of a defective item or the inadequate performance of work service –; in the event of culpably caused loss of life, bodily injury or damage to health; or with claims under the German Product Liability Act (Produkthaftungsgesetz).
10.4 The limitation periods for claims for damages shall also apply to claims for compensation for futile expenses.
10.5 For all claims, the limitation period shall commence upon delivery, in the case of work performance upon acceptance.
10.6 Unless expressly stated otherwise, the legal provisions concerning the commencement of the limitation period, the expiry suspension, interruption and recommencing of the limitation period shall remain unaffected.
10.7 The aforementioned provisions shall apply to all claims for damages that are not related to a defect; the limitation period pursuant set out in clause 10.1 sentence 1 shall apply.
10.8 The aforementioned provisions do not involve a change in the burden of proof to the detriment of the ordering party.
11. Rights of Use
For all developments and work results achieved by KRUG on behalf of the ordering party, KRUG shall grant the ordering party, upon full payment, the exclusive and temporally unlimited right to use these to the extent described in the respective order.
12. Confidentiality
The ordering party undertakes to maintain secrecy with regard to all commercial documents, financial and technical data, in particular samples or models (information), which become known during the term of the contract. KRUG undertakes to maintain secrecy to the same extent. The obligation shall commence with the first time of knowledge and continue for 36 months after the end of the business relationship. The obligation shall be waived if the information was publicly known or generally accessible or if there is proof that the third party was already aware of it; furthermore, if a party was obliged to disclose the information by virtue of statutory provisions or official administrative order.
13. Property Rights of Third Parties
The ordering party shall be liable to KRUG for ensuring that the services provided and the documents, information, data and items put at KRUG's disposal within the scope of the cooperation are free of third-party industrial property rights that rule out or impair their use by KRUG as stipulated in the contract.
B. Contracts for Work
14. Special Terms and Conditions Applicable to Contracts for Work
When contracts for work are concluded between the ordering party and KRUG, the following special terms and conditions shall apply in addition:
14.1 The order shall always be carried out at the manufacturing facilities of KRUG. Full or partial execution at the premises of the ordering party may be agreed upon if working documents cannot be handed over and/or if continuous technical discussions and/or technical coordination should require this.
14.2 The right to issue instructions to its vicarious agents and employees, in particular training, instruction and supervision, shall be exclusively incumbent upon KRUG, even if the order is carried out at the premises of the ordering party. This shall not affect the right of the ordering party to issue order-related instructions on execution relating to the work result in individual cases.
14.3 The ordering party shall confirm the progress of performance by signing the reports submitted to it. Apart from that, the following provisions shall apply to the acceptance of the services:
14.3.1 After successful performance of the function tests but no later than 2 weeks after handover of the order result, the ordering party shall declare acceptance immediately and in writing. The function tests are considered performed successfully if the order result meets the requirements provided for in the contract in any material respect.
14.3.2 The ordering party shall be obliged to notify KRUG immediately in writing if it becomes aware of any defects during the function tests. If there are significant defects in the work performance, KRUG shall initially be given the opportunity to remedy such defects within a reasonable period of time to the exclusion of any further claims.
14.3.3 If the ordering party does not indicate a defect immediately despite the obligation to accept, KRUG may set a reasonable deadline in text form for submitting such declaration. If KRUG has pointed this out in the document setting the deadline in writing, acceptance shall be deemed to have taken place unless the ordering party has refused acceptance indicating at least one defect within the reasonable period of time set for it. Acceptance shall also be deemed to have taken place if the ordering party begins to productively use the result of the order (implied acceptance). Acceptance cannot be refused for minor defects.
14.4 For any defects in the results of the order, KRUG shall honor the warranty initially by rectification of defects or new production, at its own discretion. If the rectification or new production fails despite at least two attempts two rectify the defects, the ordering party may demand a reduction in price or withdrawal as well as compensation within the scope of the limitation of liability according to clause 7. The ordering party shall not be entitled to the right of withdrawal in case of only minor defects.
C. Service Contracts
15. Special Terms and Conditions Applicable to Service Contracts
When service contracts are concluded between the ordering party and KRUG, the following special terms and conditions shall apply in addition: Without prejudice to the right of termination without notice, service contracts may be terminated by either party by giving 14 days' notice to the end of the month.
D. Final Provisions
16. Place of Jurisdiction / Applicable Law
16.1 Exclusive place of jurisdiction for any disputes arising from this contractual relationship is the registered office of KRUG.
16.2 This agreement is governed by the laws of the Federal Republic of Germany under exclusion of the conflict-of-law rules of international private law and the provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
16.3 If the ordering party is based outside the EU, the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall apply. If a factual situation is not regulated by CISG, the applicable law shall be the law of the Federal Republic of Germany.
17. Final Provisions
17.1 Ancillary verbal agreements shall only apply if they are confirmed in writing or text form by KRUG.
17.2 The authentic contractual language is German.
17.3 Should any part of these General Terms and Conditions be or become invalid, the validity and enforceability of the remaining provisions shall not be affected. The parties undertake to agree jointly on a substitute provision that is effective, enforceable for the purpose of the order and suitable for the protection of mutual interests. Section 139 of the German Civil Code (BGB) does not apply.